Allahabad H.C : The petitioner who is an income-tax assessee, seeks an order, direction or writ in the nature of certiorari quashing the entire seizure effected in pursuance of the warrants of authorisation dt. 3rd Sept., 1993

High Court Of Allahabad

Nand Kishore Mangharani vs. Director Of Income Tax (Investigation) & Ors.

Sections 28B, 132

B.M. Lal & M. Katju, JJ.

Civil Misc. Writ Petition No. 1864 of 1993

24th August, 1994

BY THE COURT :

By this petition, the petitioner who is an income-tax assessee, seeks an order, direction or writ in the nature of certiorari quashing the entire seizure effected in pursuance of the warrants of authorisation dt. 3rd Sept., 1993, and 8th Sept., 1993, under the provisions of s. 132 of the IT Act, 1961 (hereinafter referred to as “the Act”), inter alia, on the ground that under the provisions of s. 132(1)(c) of the Act, the income-tax authority may seize only movable property, i.e., any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing representing either wholly or partly income or property (which has not been, or should not be disclosed) for the purposes of the Act, whereas in the instant case immovable property has been seized which is without jurisdiction.

2. In support of his submission, learned counsel for the petitioner placed reliance on the decisions rendered in Sardar Parduman Singh vs. Union of India (1987) 62 CTR (Del) 59 : (1987) 166 ITR 115 (Del) and in CIT vs. M.K. Gabrial Babu (1991) 97 CTR (Ker) 14 : 91991) 188 ITR 464 (Ker), wherein it has been held that the action in relation to immovable property seized was invalid.

Learned counsel representing the Revenue submitted that under the Act even immovable property can be attached. Therefore, attachment of immovable property in the instant case cannot be said to be without jurisdiction. No doubt, the submissions of learned counsel for the Revenue are not absolutely without any substance inasmuch as the provisions of s. 281B of the Act are emphatic in this regard and if the proceedings are for provisional attachment, certainly immovable property can be attached. But, in the instant case, since admittedly the proceeding started under s. 132 of the Act related only to movable property, the impugned seizure of immovable property is apparently without jurisdiction. Consequently, the impugned seizure pursuant to the warrants of authorisation dt. 3rd Sept., 1993, and 8th Sept., 1993, is liable to be quashed on this short ground alone. However, the IT Department is not remedyless and we make it clear that if it is absolutely necessary to attach immovable property, the Department can proceed strictly according to law under s. 281B of the Act.

With this observation, the writ petition is allowed. The impugned seizure in pursuance of the warrants of authorisation dt. 3rd Sept., 1993, and 8th Sept., 1993, and the proceedings consequent thereto are quashed. However, there shall be no order as to costs.

[Citation : 210 ITR 1071]

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